Buried in the “miscellaneous” section of the user agreement for Portland’s new bike-sharing system is a notice that Biketown users are waiving their rights to a jury trial.

Unless, that is, they sent a one-line email to the company that operates Biketown within 30 days of first using the system. If they don’t, a prominent Portland bike lawyer says, their chances of winning any future legal claim against Biketown are slim.

hey Portland friends who got BikeTown memberships, you read the contract right? In Section 15, they force you into arbitration, unless you take action within the first 30 days (clarification- within 30 days of first use) to opt out of arbitration. As your lawyer friend, I’m here to tell you that you should opt out. don’t say I didn’t warn you.

Though Ginsberg referred to people who buy memberships, the terms apply to all users of Biketown, including people who buy rides $2.50 at a time.

What’s “arbitration” in this context? As reported in depth last year by the New York Times, it’s an increasingly common system that was designed to reduce the chance that companies will lose lawsuits brought by their customers. By including requirements like these in their terms of service or user agreements, the Times reported, consumer complaints are heard by a corporate lawyer rather than a government judge.

“The arbitrators are paid for by the bad guys,” summarized Ginsberg, the plaintiff’s attorney.

Like many similar contracts, Biketown’s binding arbitration clause also prevents bike-share users by default from joining class action lawsuits, which are a primary tool consumer attorneys use to penalize companies for wrongdoing.

“If you have a claim against them for $5, you can’t bring that claim,” Ginsberg said, explaining the concept behind class actions. “But if 1,000 people have a claim against them for $5, then they can bring that together.”

Because class actions can be costly to businesses and are more lucrative for plaintiff’s attorneys than for most plaintiffs, they are controversial. But they also undeniably create an incentive for companies to beware of defrauding or mistreating customers.

How Biketown users can protect their jury trial rights

Fortunately for Biketown users who happen to know the secret, the Biketown contract makes it easy a member to retain those legal rights.

Within 30 days of first using Biketown, the contract says, they have to send an email to legal@motivateco.com with the subject line “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.”

That’s it.

Here are the relevant instructions from the rental agreement for opting out of the restriction:

You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt out to legal@motivateco.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of Your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs.

In an email to BikePortland Thursday, Motivate spokeswoman Dani Simons said that any given bike-share user only has to opt out once for all future memberships: “If an individual opts out once we will honor that individual’s opt-out for future pass purchases.” In a second email Friday, she said that “if someone lapses and then rejoins they will have an additional 30 days to decide if they want to opt-out.”

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Binding arbitration is uncommon among bike-share user agreements

Capital Bikeshare in Washington DC is one of many that doesn’t require users to waive their jury trial rights if something goes wrong.

A review of several other user agreements at U.S. bike sharing systems shows that some include a binding arbitration provision and others don’t.

Ginsberg looked over the Seattle, Los Angeles and New York City contracts and said that “all these contracts are not very consumer friendly.” He singled out the binding arbitration in Portland, Seattle and Phoenix as “not fair,” but also said it’s not unusual for corporate user agreements.

“Unfortunately this is very standard pro-corporate anti-consumer language,” Ginsberg said. “I don’t think it’s intentional on the part of the City of Portland, but I think they could have done a much better job of having an evenhanded contract, not one that’s so lopsided.”

Ginsberg also called attention to what he called the “loser pays” attorney fee provisions, which he said created a disincentive for individuals to bring lawsuits, and to the indemnification clause, which force the user to assume full legal responsibility for anything they do with the bike sharing company’s equipment.

City transportation spokesman John Brady said in an email Thursday that the city wouldn’t comment on whether it ever discussed these issues with Motivate.

Throughout the process of launching BIKETOWN, we have been careful not to discuss the ins and outs of the contract negotiations. We feel this is important in order to preserve the integrity of both past and future negotiations.

I asked Ginsberg if, knowing what he does now, he would use Biketown.

“I support bike share programs,” Ginsberg said. “I don’t know. I currently am able to get around just fine without it.”

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48 Comments

gretchinJuly 21, 2016 at 11:20 am

THANK YOU THANK YOU THANK YOU for highlighting this! Mandatory and exclusive arbitration in contracts is one of my pet peeves.

I attempted to opt out yesterday when Mark alerted me to this. My emails have been bouncing back as undeliverably from the legal@motivateco.com email address. I finally gave up and emailed customer service asking them what to do to opt out, so far no response. I am curious if anyone else is having a similar issue.

weird- I’m not getting a bounce from that address, at least through gmail (google apps for domains). Maybe it’ll fail eventually for me. But yeah, IANAL, but for me, I assume getting it on record is fine- “I tried to opt out per instructions and it failed, so I sent the opt out to cust svc, here’s the email proof.”

and it’s a “damned if you do, damned if you don’t” situation. either it’s the branding/”disneyfication” of public property or it’s wasting taxpayer dollars to start the program, and likewise with operational costs (staffing).

Good point but I think certain parties which start with D should figure out by now that this is just playing into the “government so small that you can drown it in a bathtub” theory in that much of the potential upside will go to Nike rather than the city. The branding is so ubiquitous and well executed but ultimately leads you to overestimate the role Nike plays.

Nike on the other hand gets it both ways. Due to their insane margin, they get to write off any losses while banking the goodwill. Sort of like Google and its various pet projects. None of the scrutiny or expectations of the public sector.

This is the slow death-spiral set in motion when heavily branded public-private partnerships are formed.

Yeah, but that’s completely ignoring the benefits bike share provides to the people. The role of government is to provide beneficial services for its citizens and in this case I consider Biketown a win for our city government.

Taking your question at face value, how about when Biketown fails to maintain the bike and the internal gear hub comes out of gear at a particularly bad time which causes a crash? I would hazard to guess that the victim of such a crash might be inclined to sue.

Exactly what I was thinking, something akin to GM’s faulty ignition switch or the Voltswagon emissions fraud comes to mind. Hopefully nothing like that would happen, but if it did, one might want to retain their rights to sue in order to cover hospital bills and lost wages.

It is covered in the case a truck or car runs into the bike you returned and locked to the bike rack. You as the last user are the one liable for the $2300+ to replace it. It will be charged to your credit card account. If you do not opt out that is.

“Welcome to the new Pokemon Go: Litigation Avoidance version, a BIKETOWN (TM) exclusive! Document everything you do on and off your BIKETOWN (TM) bike with time-stamped photos and option Twitter-length captions, then post them to your own secure web gallery (available for purchase with first rental). Provides you with the ability to completely curate your very own bike rental experience from start to finish. Every curated BIKETOWN (TM) trip earns you points which can be used to purchase cool stuff, like BIKETOWN (TM)-orange helmets, coffee thermoses, safety vests and much more! Must waive right to enter into class action lawsuits; ages 18+ only.”

Tricky, or seems kind of that way. Though it’s listed in the outline close to the top of the agreement, the actual text of the opt out clause is located in section 15, way down the lengthy agreement. What’s the likelihood that most people using bike share, are going to have done so much as browse over the text of the agreement. Having had the experience of being commonly presented with similarly lengthy legalistic language associated with lots of computer software, likely will mean most people will basically ignore the agreement, get on the bright orange bikes and go-o-o!

But anyway…what could happen associated with using a biketown bike, that might cause a bike share user to have a need to seek private legal counsel to be compensated for loss due to something gone wrong with the bikeshare bike they were riding? Not an easy or simple question to answer, I suppose.

While I’m definitely not enthusiastic about people enabled to pursue frivolous lawsuits…strategies used to preclude the opportunity for just compensation for wrongs, is something that’s not fair, or even very honest.

I got to admit, I don’t know a lot about the reasons for these kinds of agreement clauses. Below the surface appearance to consumers, the agreement clause may, to groups that use them, be seen by them, as a component that’s essential to their survival, rather than as some may think…primarily a profit gaining strategy, or an overhead reduction strategy.

The lawsuit-arbitration controversy, is a big, big, long standing issue. Take a look at the NYtimes article, Pt 1 (links to Pt’s II and III, at the bottom of that story) , linked in this story, if you’ve any question about that.

As a matter of course, opting out of the arbitration obligation, seems the wise thing for bike share users to do. Maybe they had a legitimate reason for including such a clause, but it’s too bad that biketown’s legal advisors and operators, felt they had to put this clause, they way they did, in the biketown bike share user agreement. It seems sneaky…dishonest.

I’d welcome the opportunity to read what the biketown team may be willing to offer, related to their feelings about the arbitration clause in the biketown agreement.

What the future may hold is anyone’s guess. I’m going to bookmark this article just for future reference. I have no plans to join or use the bike share in Portland at this time. I have no issue with the system, it’s just that their service area is more than 50 blocks from my current home. As always “outer” Portland gets the shaft.

Really though, I hope it proves popular and grows to include more and more of us. I’m in St Johns and without Car2go (a handy thing I use to like to have available) and now Biketown. It is definitely a drag.

“their service area is more than 50 blocks from my current home. As always ‘outer’ Portland gets the shaft.”

I don’t think this is necessarily a fair criticism. I think people are laboring under some misconceptions about public transportation.

Public transportation is not a right. It only makes sense above certain densities; there are logistical and financial hurdles to consider, etc. With things like sidewalks and bike infrastructure I think outer Portland has historically gotten the shaft, but I think there is a qualitative difference between infrastructure and public transport. No one in their right mind would feel entitled to frequent bus service out in the country. There is simply no way to justify that sort of expense given the low utilization potential.

statistics say that the average reader would take 30 minutes to read the agreement… and that they would comprehend 60% of the material… probably less for legal material with terms you’re unfamiliar with…

so how many tourists standing at a bike rental station took 30 minutes to read the agreement (and where? on the bike’s LCD?) before renting and completely understood it? I’m betting on zero…

these types of lengthy legal agreements are coming under a lot of scrutiny lately and aren’t holding up well in court… this seems like just another example…

I’m guessing this isn’t the only issue he found with the legal text… just a quick skip seems to show many portions that are just impossible to fulfill…

does every station have a pump with gauge and a wheel-truing stand? if not then how are you supposed to ensure that the tire pressure is correct and the wheels are true per the agreement?

and how are you supposed to ensure the brakes and lights work properly BEFORE you use them? you have to get on the bike to know the brakes will stop you, and I thought the lights turned on automatically when you started going…

““The arbitrators are paid for by the bad guys,” summarized Ginsberg, the plaintiff’s attorney.”

Who is the plaintiff? As I understand the story, this is something Mark found without representing anyone yet – are you saying there is already an action against Biketown and/or Motivate here in Portland?

Clearly Mark Ginsberg, Esq., has a point of view. He could have said ‘If you do not opt out, and if you ever have a serious disagreement with Biketown, you will find that it is being adjudicated by a person who gets their paycheck from your opponent.’ Seem fair?

Now I have a new reason to rent an orange bike, so I can poke a stick in the eye of this compelled arbitration business.

regarding fine print, I read an article in yesterdays’ Portland Tribune that suggested that there was a limit on the amount of minutes/hours depending on whether one choose a daily/yearly plan. Something like 90min/day and 180 min/day (yearly). Is this true ? I just assumed it was unlimited except for those paying by the hour.